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2018 DIGILAW 1594 (GAU)

C. Ramrela v. State of Mizoram

2018-11-09

NELSON SAILO

body2018
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. J.C Lalnunsanga, the learned counsel appearing for the petitioner as well as Mr. A.K Rokhum, the learned Addl. Advocate General, Mizoram. 2. Considering the grievances projected by the writ petitioner, the writ petition is taken up for disposal with the consent of the learned counsels for the rival parties. 3. Brief facts for disposal of the present writ petition may be noticed at the outset. The petitioner, upon being recommended by the Mizoram Public Service Commission (MPSC), was appointed to the post of Subordinate Agricultural Service-I w.e.f, the date of his joining vide Notification dated 28.8.95 (Annexure-I). While he was posted in the establishment of the District Horticulture Office at Saiha (now Siaha), a criminal case was registered against the petitioner along with 4 other persons i.e., ACB PS C/No. 10/2012 dated 05.10.2012 under Sections 120B/468/477A of the Indian Penal Code r/w Section 13 (1) (b)/13 (2) of the Prevention of Corruption Act, 1988. The Criminal case was registered on the allegation that there was a misappropriation of Rs. 15,81,222/- by the accused persons including the petitioner for their own pecuniary benefits. Following the completion of the investigation, a charge sheet under aforesaid sections of law was submitted by the prosecution i.e., Charge Sheet No. 2/2015 dated 16.02.2015. However, at the time of the consideration of the charge, the learned Trial Court under the Prevention of Corruption Act, not having found a prima facie case against all the accused persons, including the petitioner, was pleased but discharged them from the liability under the aforesaid sections of law. The order of discharge was passed by the learned Trial Court on 12.11.2015 (Annexure-2). 4. The claim of the petitioner is that as per the Mizoram Horticulture Service Rules, 2006, the next promotional post from the Grade-V post of the Department of Horticulture is to a Grade-IV post, which includes the post of Horticulture Development Officer/Addl. Divisional Horticulture Officer. Accordingly, the petitioner being eligible for promotion was considered by the MPSC, after Vigilance clearance was given by the Vigilance Department vide ID No. C. 31015/16/2016-VIG dated 18.08.2016. However, on account of the registration of the criminal case, the petitioner's recommendation was kept in a sealed cover. Divisional Horticulture Officer. Accordingly, the petitioner being eligible for promotion was considered by the MPSC, after Vigilance clearance was given by the Vigilance Department vide ID No. C. 31015/16/2016-VIG dated 18.08.2016. However, on account of the registration of the criminal case, the petitioner's recommendation was kept in a sealed cover. However, following discharge of the petitioner, the sealed cover was opened and it was found that the MPSC had recommended the petitioner for promotion to Grade-IV of the Mizoram Horticulture Service. A communication to this effect was made by the Deputy Secretary of the MPSC to the Under Secretary to the Government of Mizoram, Department of Personnel & Administrative Reforms (GSW) on 09.01.2017 (Annexure-6). Despite opening the sealed cover, the respondents did not promote the petitioner since the filing of a criminal revision petition against the judgment & order, by which he was discharged by the learned Trial Court was contemplated. 5. Admittedly, the State has preferred Criminal Revision Petition No. 2/2017 and the learned counsels for the rival parties submit that the same is pending for final disposal as on date. The Under Secretary to the Government of Mizoram, Horticulture Department vide her Communication dated 8.8.2017 (Annexure 10) informed the Director of Horticulture Department that the promotion of the petitioner cannot be considered at this stage since the criminal revision petition is pending for final decision. Being aggrieved, the petitioner is before this Court. 6. Appearing for the petitioner, Mr. J.C Lalnunsanga, the learned counsel submits that following the recommendation of the MPSC, as many as 8 (eight) juniors of the petitioners, have since been promoted. He submits that the State respondents cannot deny the petitioner his due promotion, inasmuch as he was discharged by the learned Trial Court vide the Judgment & Order dated 12.11.2015 and withholding the promotion of the petitioner only on account of the pendency of the criminal revision petition, cannot be justified. To substantiate his submission, the learned counsel has produced an Office Memorandum, issued by the Ministry of Personnel, Public Grievances & Pensions in the Department of Personnel & Training dated 19.01.2017. By referring to clause (ii) of the said Office Memorandum, the learned counsel submits that promotions cannot be withheld only for the reason that filing of an appeal is contemplated or an appeal is pending final disposal. By referring to clause (ii) of the said Office Memorandum, the learned counsel submits that promotions cannot be withheld only for the reason that filing of an appeal is contemplated or an appeal is pending final disposal. That pending disposal of such appeal, a Government servant can be given provisional promotion, however, without prejudice to the action that may be taken if the judgment of the Court acquitting the Government servant is set aside. He, therefore, submits that there is no impediment in promoting the petitioner even as the criminal revision petition is pending final disposal. Considering the fact that the juniors of the petitioners have since been promoted to the Grade-IV post of the Mizoram Horticulture Service, Court may pass suitable direction to the respondents to promote the petitioner w.e.f., the date his next junior, was promoted as recommended by the MPSC. 7. Mr. A.K. Rokhum, the learned Addl. Advocate General submits that in the Office Memorandum dated 19.01.2017 produced by the learned counsel for the petitioner, it is clearly mentioned that provisional promotion can be made in a case where a Government servant is acquitted from the charge. In the present case, the petitioner was only discharged by the learned Trial Court and therefore, the Office Memorandum cannot render any assistance to the petitioner. He, therefore, submits that pending disposal of the criminal revision petition, the writ petition may be deferred or in the alternative, the same may be dismissed. 8. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record including the Office Memorandum dated 19.01.2017 produced by the learned counsel for the petitioner. 9. The only issue to be decided is as to whether the petitioner can be given promotion in terms of the recommendation made by the MPSC to the Grade-IV post of the Mizoram Horticulture Service, pending finalization of the criminal revision petition, filed against his discharged by the State. 10. There is no dispute of the fact that the petitioner was found to be recommended for promotion after the sealed cover was opened by the MPSC. It is only on account of the pendency of the criminal revision petition that promotion has been denied to him. 10. There is no dispute of the fact that the petitioner was found to be recommended for promotion after the sealed cover was opened by the MPSC. It is only on account of the pendency of the criminal revision petition that promotion has been denied to him. Office Memorandum dated 19.01.2017 provides that a sealed cover may be opened in case of acquittal of the Government servant provided the order of acquittal has not been stayed by a superior Court. The Office Memorandum further provides that in case, there is no stay by the superior Court, a provisional promotion can be given to the Government servant subject to the outcome of the appeal filed against the acquittal of the Government servant. The present case is not that of an acquittal but in order of discharge of the petitioner at the time of consideration of the charge by the Trial Court concerned. 11. In my considered opinion, no line of distinction can be drawn between the case of acquittal and the case of discharge in so far as giving effect to a provisional promotion under the given circumstance. The order of discharge admittedly was preceded by a finding by the learned Trial Court that there was no prima facie case against the petitioner and therefore, the learned Trial Court found it to be a fit case for discharging the petitioner. Therefore, the Office Memorandum dated 19.01.2017 only covers the case of the petitioner. 12. In that view of the matter, this writ petition is disposed of with a direction to the respondents to give effect to the recommendation of the MPSC, whereby the petitioner was recommended for promotion to the Grade-IV post of Mizoram Horticulture Service, with effect from the date on which his next junior was promoted as recommended by the MPSC. On his promotion, the petitioner will be entitled to all the service benefits including arrear salaries as well as seniority. It is, however, made clear that the promotion will be a provisional promotion and will be subject to the outcome of the Criminal Revision Petition No. 2/2017 filed by the State. 13. The respondents shall comply with the above directions as expeditiously as possible and within the outer limit of 4 (four) weeks from the date of receipt of a certified copy of this order. 14. 13. The respondents shall comply with the above directions as expeditiously as possible and within the outer limit of 4 (four) weeks from the date of receipt of a certified copy of this order. 14. Office Memorandum dated 19.1.2017 is retained in file and marked as 'X' for identification.